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Disqualifying Expert Witnesses for Conflicts of Interest

March 30th, 2021

Some notes on vexing issue, which fortunately has never serious issue for me. I do recall a former partner, who with great exuberance, called every potential expert witness and then felt hurt when some of them showed up as trial witnesses on the other side. Of course, these turncoats bragged of having been approached by, and having rejected work for, the defense.

Side Switching

Opportunism or carelessness can sometimes affect expert witness retention in a way that results in “side switching.” Some lawyers may think it wonderful to snag the other side’s expert witness, who comes with a credibility credit for having been first identified by the other side. Although no rule or statute prohibits side switching, state and federal courts have exercised what they have called an inherent power to supervise and control ethical breaches by lawyers and expert witnesses.[1]

The Wang Test

Although certainly not the first case on side-switching, the decision of a federal trial court, in Wang Laboratories, Inc. v Toshiba Corp., has become a key precedent on disqualification of expert witnesses.[2] The test spelled out in the Wang case has generally been followed in federal courts,[3] as well as in state courts.[4] Given that most of the side-switching cases are quite fact sensitive, it is instructive to detail the facts that lead to an expert witness’s disqualification in this frequently cited case.

The Wang case, as far disqualification is concerned, began with a telephone call from Wang’s lawyer to a computer consultant. From Wang’s lawyer’s perspective, the call resulted in “retention.” The consultant denied that he was retained; as far as he was concerned, he agreed only to examine the patents at issue in the litigation, and to serve as an expert witness only if he were convinced of the patents’ validity.

After their telephone conference, Wang’s lawyer sent the consultant copies of the disputed patents, some materials suggesting an infringement, and the lawyer’s memorandum discussing the history of the prosecution of the patents. A short while later, the lawyer sent another memorandum, labeled “Confidential Attorney-Work Product,” which discussed potential defenses in the suit.

After providing these written materials, Wang’s lawyer had further conversations with the consultant about technical aspects of the case, and disclosed additional confidential information. The lawyer recounted that he had told the consultant that the conversations were confidential. The consultant denied receipt of any confidential information, and stated that he had not referred to the confidential memorandum because he had first to determine the validity of the patent. Working at a preliminary, investigatory stage, the consultant did not see himself as retained unless and until he concluded that the patents were valid.

Upon completed his preliminary investigation, the consultant concluded that the patents were not valid. The consultant informed Wang’s lawyer of his conclusion, and his decision to decline serving as an expert witness for Wang. Wang’s lawyer requested a short report from the consultant, who sent the requested report, which documented that he had read the patents and the “Work-Product” information.

After this interaction between Wang and the consultant, one of Wang’s adversaries, NEC approached the consultant and retained him as an expert witness. When NEC designated the consultant as an expert witness to be called at trial, Wang moved promptly to disqualify the consultant.

The Wang court recognized that if a retained expert witness receives confidential information and then switches sides, he or she is out. In Wang, both retention and receipt of confidential information were contested. The court held that both conditions were required for disqualification. Hence we have the two-prong Wang Test:

  1. A Confidential Relationship. This prong requires an inquiry into whether the party that claimed to have made the retention was objectively reasonable in concluding that a confidential relationship had been created between the party and the consultant. This fact-sensitive inquiry will typically turn on all the facts and circumstances surrounding the lawyer-consultant interaction, such as:
  • an agreement that contemplates sharing of confidential materials,
  • the lawyer’s having provided the consultant with confidential documents,
  • the existence of an agreement about retention,
  • the extent of the lawyer-consultant communications and meetings,
  • the payment of consideration for the consultant’s work, and
  • the extent of the consultant’s work and whether he or she formed any opinions about the issues in the case
  1. Secrets Shared. The second Wang prong inquires into whether confidential or privileged material had been shared with the consultant. The sharing of such information is evidence of a confidential relationship, but it is also required as an independent basis to satisfy the Wang court’s test. One party’s secret is another party’s commonplace, and the moving party must show that:
  • the information in question was specifically related to the case,
  • the information was privileged or confidential,
  • the information was not evidence that would have been discovered inevitably by the adversary, independent of the consultant’s side-switching
  • the information was not purely technical or otherwise in the public domain

In Wang, as in many similar cases, the lawyer and the consultant gave rather wildly inconsistent accounts of their interactions. The disputatious nature of disqualification motions is sadly all too common. The burden of proving both prongs of the Wang test is on the moving party, and in the Wang case, the court found that Wang’s lawyer had prevailed on both prongs. The consultant was disqualified.

The Wang two-prong test is the majority rule; both prongs must be satisfied. A minority of courts have disqualified expert witnesses “even if no disclosures occur,” in the name of the judicial process integrity.[5]

Public Policy Limits on Wang

Although the Wang test is sometimes characterized as a “bright-line” test, the Wang court itself was sensitive to potential abuse by lawyers who wished to silence certain expert witnesses by creating what appears to be a confidential relationship without actually sharing confidential information. After Wang, some courts moved beyond the two-part test to consider the policy implications of the requested disqualification.[6] Some of the policy considerations that have been advanced and been factored into judicial decisions whether to disqualify an expert witness include:

  • protecting freedom of contract, and the consultant’s right to pursue a livelihood,
  • preventing “sham” retentions to set up later disqualification, especially when there is a limited availability of qualified expert witnesses on the issues, and
  • preventing prejudice to the innocent second party that approached the consultant.

Procedural Issues

Burden of Proof. The case law clearly places the burden of proving the elements of disqualification on the moving party.

Timeliness of Objections. The case law also makes clear that a party must move promptly to object to an expert witness’s conflict of interest.[7]

Not the same product, but similar product, in a later case

When the expert witness in question testified for an adversary in a different case, the analysis of confidential aspect of the shared information becomes more difficult.

Mass Tort Cases

In mass tort cases, many individual plaintiffs have typically sued a single or limited group of defendants. Such litigation can take decades to resolve, or may even become a perpetual motion litigation machine, such as asbestos personal injury cases. Such litigation creates a great need for expert witnesses on various topics, and the duration of the litigation may lead to innocent or deliberate recruitment of the other side’s former expert witnesses.

In one Fen-Phen case, one plaintiff sought to retain an expert witness previously retained by Wyeth to testify about the same diet drug (fenfluramine) in a case brought by a different plaintiff. The trial court readily concluded that there was clear overlap, with sufficient evidence that Wyeth had shared its confidential case strategies and confidential information related to the same drug.[8]

In some instances of side switching, the allegedly defective product may have been similar but not the same. Determining how much overlap makes the sharing harmful of confidential information has proceeded on a case-by-case basis. One thing, however, is clear: there is no overarching duty of loyalty. In one case, a federal court allowed expert witnesses to testify for and against the same defendant in concurrent patent litigation.[9] The court reasoned that the expert witnesses’ testimony in each case addressed only the specific, different patents in the case, and there was no overall sharing of general litigation strategy common to both cases. The testimony in each case did not overlap with the testimony in the other case. The challenge failed to show that confidences were shared that affected both cases.

One New Jersey appellate court upheld the disqualification of an expert witness who had worked for the State of New Jersey on a case that involved confidential disclosures by the State’s lawyers and its agencies, which disclosures were necessarily involved in the expert witness’s subsequent retention by the State’s adversary in a different case.[10] This decision, like most in this area, turned on a close analysis of the facts and circumstances of the retentions and consultations of the expert witness.

Practice Considerations

Obviously, lawyers must research consultants before approaching them. After making contact with a consultant, it is incumbent upon counsel to ask the consultant specifically about past and current engagements and any confidentiality limitations.[11]

Lawyers should clearly communicate their intention to create a confidential relationship that will permit candid exchange of views and information; consultants should similarly express their reservations and doubts about entering into such the proposed working relationship.[12]

In entertaining motions for disqualification, courts generally want to see confirmation of retention in writing.[13] Such writings should recite agreements on fees, billing, payment, as well as an explanation of the nature of the consulting relationship and the anticipation of shared confidences. Some commentators have suggested, imprudently in my view, that the agreement specifically prohibit side switching.

After the consultancy has begun, lawyers should clearly label their work-product communications. The 2010 amendments to the Federal Rules of Civil Procedure protect such communications from discovery in the litigation process.[14] The 2010 amendments did not, however, protect communications relating to compensation, or the lawyer’s identification of facts or data, which the expert witness then considered in forming opinions, or the lawyer’s identification of assumptions to be made by the expert witness in reaching opinions.[15]  Lawyers must exercise great care in navigating the relevant state and federal rules to protect their work-product that has been shared with expert witnesses who will be disclosed as trial witnesses.

Role and Relationship Conflict

Managerial Employees

A company’s former executives or former high-level employees who had access to internal, deliberative and confidential communications, such as communications with legal counsel, are off limits to an adversary that wishes to engage the former employees as expert witnesses in litigation involving the confidences.

Treating Physicians

Treating physicians act in a role of sharing confidences and trust with their patients. Generally, courts have disallowed parties from engaging physicians as expert witnesses in litigation against the physicians’ patients. In mass tort litigation, however, courts have been willing to permit physicians to serve as expert witnesses, even when some of their patients are plaintiffs, as long as they serve as expert witnesses only in cases brought by non-patients.

Physicians frequently have important factual testimony that bears on litigation, and courts have rejected disqualification of physicians as fact witnesses. In Ngo v. Standard Tools & Equip. Co., Inc., 197 F.R.D. 263 (D. Md. 2000), the court rejected plaintiff’s attempt to disqualify his own treating physician as a defense witness. The plaintiff claimed that he and his counsel had engaged the physician as an expert witness, but the court found that no confidential relationship had been formed. The physician was allowed to testify as a fact witness for the defense. It would be extremely unlikely that an engagement of the physician as a consulting expert witness would have prevented the adverse party from calling the physician as a fact witness, in any event.

Treating Psychotherapists

The psychotherapy-patient relationship is one in which the very nature of the relationship may disqualify the psychotherapist from acting as an expert witness in support of a patient’s claim. The psychiatric profession generally recognizes that providing therapy to a patient and forensic services in support of the patient’s legal claims can adversely affect the therapeutic relationship and impair the therapist’s objectivity as an expert witness.[16] Interestingly, there is not much case law on this potential source of disqualification. In one uncelebrated case, a motion to disqualify a treating psychiatrist from serving as an expert witness was filed, but the case was dismissed on other grounds.[17]

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[1] Grant Thornton, LLP v. Fed. Deposit lnsur. Corp., 297 F. Supp. 2d 880, 881-82 (S.D. W.Va. 2004); Wang Lab., lnc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991) (“protect the integrity of the adversary process and promote public confidence in the fairness and integrity of the legal process”).

[2] 762 F. Supp. 1246 (E.D. Va. 1991); see also Vershuta, “New Rules of War in the Battle of the Experts: Amending the Expert Witness Disqualification Test for Conflicts of Interest,” 81 Brooklyn L. Rev. 733 (2016); Brian Hooven, “The Science Behind Expert Disqualification: A Guide,” 12 Expert Witnesses 13 (Fall 2016); Lynne Bernabei, Matthew Radler & Lauren R. S. Mendonsa “Ethical Duties and Standards in Disqualifying, Retaining, and Communicating with Expert Witnesses,” 43 Brief 1 (2013); Maya M. Eckstein & Paul Nyffeler, “The Expert of My Enemy Is My Expert: Conflicts of Interests Amongst Expert Witnesses,” 17 Litig. News 1 (Summer 2012); Douglas R. Widin & Francis J. Maloney III, “Conflicts of Interest and Litigation Experts,” chap. 4, in Cynthia H. Cwik, ed., Scientific Evidence Review: Current Issues at the Crossroads of Science, Technology and the Law, Monograph No. 7 (2006); Cathy Altman & Dena Denooyer Stroh, “Keeping It Confidential: Disqualifying Experts,” Commerical & Bus. Litig. J. 10 (Spring 2005); Kendall Coffey, “Inherent judicial Authority and the Expert Disqualification Doctrine,” 56 Fla. L. Rev. 195 (2004); Douglas R. Richmond, “Regulating Expert Testimony,” 62 Mo. L. Rev. 485 (1997).

[3] See, e.g., Greene, Tweed of Delaware, Inc. v. DuPont Dow Elastomers, LLC, 202 F.R.D. 426, 429 (E.D. Pa. 2001); In re Orthopedic Bone Screw Prod. Liab. Litig., 1995 U.S. Dist. LEXIS 21526 at *8 (E.D. Pa. 1995); Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1092-093 (N.D. Cal. 2004); Crenshawv. Mony Life Ins. Co., 318 F. Supp. 2d 1015, 1026 (S.D. Cal. 2004); Syngenta Seeds, Inc. v. Monsanto Co., 2004 WL 2223252 at *2, No. 02-1331-SLR (D. Del Sept. 27, 2004); Mays v. Reassure America Life Ins. Co., 293 F. Supp. 2d 954, 957 (E.D. Ark. 2003); Cordy v. Sherwin-Williams Co., 156 F.RD. 575, 580 (D.N.J. 1994); English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498, 1452 (D. Colo. 1993).

[4] See, e.g., Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo. 1999); Formosa Plastics Corp., U.S.A. v. Kajima Internat’l, Inc., 2004 WL 2534207 at *2 (Tex. Ct. App. Nov. 10, 2004), rev. denied, 15 S.W.3d 289 (Tex. 2004); Turner v. Thiel, 553 S.E.2d 765, 768 (Va. 2001).

[5] City of Springfield v. RHI Holdings, Inc., 111 F. Supp. 2d 71, 74 (D. Mass. 2000).

[6] See, e.g., Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994).

[7] See Popular, Inc. v. Popular Staffing Services. Corp., 239 F. Supp. 2d 150, 153 (D. Puerto Rico 2003).

[8] Righetti v. Wyeth, Inc., No. 07-20144, 2009 WL 1886131 (E.D. Pa. 2009). See also Rhodes v. E.I. Du Pont De Nemours & Co., 558 F. Supp. 2d 660 (2008).

[9] Bone Care Internat’l, LLC v. Pentech Pharms, Inc., 2009 WL 249386, at *2–3 (N.D. Ill. Feb. 2, 2009).

[10] Conforti & Eisele, Inc. v. Div. of Bldg. & Constr., 405 A.2d 487 (N.J. Super. Ct., L. Div. 1979) (noting that the court’s “decision should in no way be read to indicate that an expert who has traditionally been hired by one attorney in a particular type of litigation would be precluded from offering his services to that particular attorney’s adversary in an unrelated matter”).

[11] English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498, 1505 (D. Colo. 1993) (“[C)ounsel seeking to retain a consultant should inquire specifically whether the consultant’s past employment presents any confidentiality roblems.”).

[12] Wang Lab., lnc. v. Toshiba Corp., 762 F. Supp. 1246, 1246, 1248-49 (E.D. Va. 1991) (noting that fairness require that lawyers bear a burden to communicate to consultants that they desire and intend to create a confidential relationship, and that consultants express their doubts unequivocally and decline any disclosures until their doubts are resolved).

[13] See, e.g., id. at 1249-50; Syngenta Seeds, Inc. v. Monsanto Co., 2004 WL 2223252 at *2 (D. Del. Sept. 27, 2004); See also Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1091 (N.D. Cal. 2004) (discussing the practical importance of written retention agreements).

[14] Fed. R. Civ. P. 26(b)(4)(B), (C).

[15] Fed. R. Civ. P. 26(b)(4)(C)(i)-(iii).

[16] Psychiatrists’ Program, “Can a Treating Psychiatrist Double As Expert Witness for Same Patient?” 39 Psychiatric News at 16 (Aug. 20, 2004); “Assuming Conflicting Roles Can Be Risky,” 36 Psychiatric News at 25 (Oct. 19, 2001); see also Larry H. Strasburger, Thomas G. Gutheil & Archie Brodsky, “On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness,” 154 Am. J. Psychiatry 448 (1997).

[17] Conant v. Tru-Test Manufacturing Co., N.J. Law Div., Burlington Cty. No. L-03214-97 (Oct. 25, 2002).

Posted in Conflicts of Interest, Expert Witness Discovery | 284 Comments »

The Misplaced Focus of Enterprise Liability on the Wrong Enterprise

March 27th, 2021

Well, soon the pandemic of Trump Flu will come to a close.  In the future, children too young or born after the pandemic will ask, “where were you during the pandemic, and what did you do?”

For lawyers, trials adjourned and courtrooms went dark, although discovery and motion practice continued. With some free time, I thought it a good time to write about the mess that American tort law has made of employer responsibility in product liability law. And the time seemed right because the Supreme Court had only recently provided a fascinating case study in how out of touch some courts can be with the realities of workplace injuries. The recent decision in DeVries v. Air & Liquid Systems Corp., 139 S.Ct. 986 (2019), was a perfect canvas on which to sketch out tort law’s failure to come to grips with the three-way relationship among industrial product seller, sophisticated industrial or military purchasers and employers, and injured plaintiffs.[1]

Many commentators might have viewed the justices who squared off in DeVries, Kavanaugh for the majority, Gorsuch for the dissent, as cut from the same judicial cloth, but their two opinions diverged in interesting ways. The entire court, however, shared a frail and faulty understanding of the role of third-party employers and product purchasers in providing a safe workplace. Not surprisingly, both the majority and dissenting opinions failed to do justice to the depth of Navy knowledge of the hazards of asbestos, Navy control over the workplace, and the futility of warning of asbestos exposure to the Navy, which had superior knowledge of both general asbestos hazards, the specific conditions it created, and the methods needed to protect its workers and sailors.

The failings of scholarship and analysis in DeVries have a bigger context.[2] The role of third parties – sophisticated intermediaries – received careful consideration in the First and Second Restatements of Torts, in Section 388 and its comments.[3] The Third Restatement continued to endorse this important defense, based upon the practical and sensible limits of liability, but placed the relevant discussion in a hard-to-find comment to a very broad, general section:

“5. The Restatement, Second, of Torts § 388, Comment n, utilizes the same factors set forth in Comment i in deciding whether a warning should be given directly to third persons. It has been relied on by numerous courts. See, e.g., Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D.Va.1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985) (applying Virginia law)… .”[4]

At least these celebrated sophisticated intermediary defense cases were cited by the Third Restatement, in a comment. Many current tort textbooks fail to mention the defense at all.[5] Tort theorists stress the importance of the boundaries between consumers and industrial enterprises, but ignore the frequent setting in which the purchaser is itself an industrial enterprise, and has independent legal and regulatory duties to provide safe workplaces with the products at issue.[6] Highly sensitive to the need to protect ordinary consumers from the predations of large manufacturing companies, many tort theorists are insensate to the need to protect manufacturers-sellers from the predations of large employing purchasing corporations upon the purchasers’ employees.[7]

Many scholars have written about the United States government’s historical knowledge of asbestos dangers,[8] but without any sense of outrage or concern, such as you might find in the purple prose of Paul Brodeur.[9] Although Brodeur did ever so slightly touch upon lawsuits against the United States government for conditions in Naval shipyards and elsewhere, he quoted with seeming approval the comments by Captain George M. Lawton, given in a 1979 interview. When asked whether the Navy was responsible for workplace conditions at the Navy’s Electric Boat shipyard, Lawton flippantly shrugged off the suggestion with the observation:

“If I order an automobile and the way they make automobiles is to throw people into a furnace, I am not responsible for that.”[10]

Brodeur, who was quick to judge the asbestos product manufacturers, fails to note that it was Captain Lawton’s Navy that was throwing people in furnace at its Navy yards around the country. Similarly, asbestos plaintiffs’ expert witness, Barry Castleman, who had written a trial manual for plaintiffs’ lawyers based upon distorted assessment of individual companies’ historical involvement with asbestos, spends no time investigating the huge record of United States governmental knowledge of asbestos use.[11] Castleman, schooled by the lawsuit industry lawyers, understood that documenting the knowledge of the intermediary, product purchaser, and workplace owner, detracts from the David-and-Goliath narrative his retaining counsel needed to prevail in litigation. Writers such as Brodeur and Castleman are fond of citing historical writings of governmental health agencies for claims of health hazards. Captain Lawton’s Navy was, of course, possessed and was bound by the knowledge of those very same public health agencies.[12]

In the mid-1970’s, amidst economic turmoil, and declining military budgets, the United States Navy found itself with a big problem. Payments to civilians under the FECA (Federal Employees’ Compensation Act), a statute that gives civilian employees of shipyards the equivalent of workers’ compensation benefits, came right out of the Navy’s budget for shipbuilding. The Navy had no insurance for FECA payments, and suddenly it found itself facing a large uptick in the number of claims made by civilians for asbestos-related injuries. About the same time, many states adopted some version of strict product liability, some stricter than others. None was likely stricter than Pennsylvania’s version, which made referring to employer responsibility virtually impossible. Ultimately, the plaintiffs’ bar found that strict liability recoveries and settlements were too certain to encumber themselves and their clients with government liens, and they stopped filing their FECA cases altogether.

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters notified the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. (These diagnosing physicians went on to make fortunes by serving as expert witnesses in subsequent civil litigation.) The letters notified the workers that they might have rights under FECA, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt. The cruel irony of the FECA (or workers’ compensation) statutes is that the employer pays regardless of fault, that the employer can’t be sued in civil actions, and that the employer can recover ~80% of its payments from settlements or judgment proceeds from a civil defendant.

The government’s role in fueling the explosion of asbestos civil actions has not received very much, if any, real scrutiny. What a story is hidden away in those old files! Not only did the Navy know of the asbestos hazards, hide them from its civilian workers, but when those workers got sick, the Navy turned on its outside suppliers by encouraging its workers to sue the suppliers, while hiding behind the exclusive remedy provision of the FECA.

The story of the Navy’s misdeeds, misrepresentations, and misinformation has been told, in bits and pieces, here and there. What was needed back in the 1980s was someone who could write a thorough documentary history of the Navy’s predations upon its employees and its sailors. There is a trove of materials from before World War II, but increasing dramatically with the wartime efforts of Dr. Philip Drinker to obtain safe asbestos workplaces for both workers both at contract and naval shipyards.

In the postwar period, Navy culpability became even clearer. In 1957, for instance, more than a decade after Drinker’s investigations and reports of asbestos safety hazards, the Navy held a Conference of Pipe and Copper Shop Master Mechanics, at the Boston Naval Shipyard, on May 8 -10. Representatives from every naval shipyard, as well as the Bureau of Ships, and Commander Simpson, were present. A master pipefitter, O.W. Meeker, visiting from Shop 56, Long Beach Naval Shipyard, presented on “Pipe Insulation Processes and Procedures.” Notwithstanding confusion between asbestosis and silicosis, and between asbestos and silica, Mr. Meeker’s remarks speak volumes about the government’s role in the “asbestos mess”:

“The asbestos which we use is a mineral as much as is the rock in which it is found. Furthermore, its principal ingredient is silicon, which is responsible for the disease which we know as silicosis [sic].

Asbestos, silicosis, is caused by prolonged breathing of silica dust [sic]. Asbestos, when handled dry, produces vast amounts of silica dust. In new applications the material can be dampened to reduce the amount of dust liberated. However, the specified type of amosite for use on cold water piping is water repellent. Also material which must be removed from an existing installation is dry and powdery, being an excellent dustproducer.

The most apparent symptom of asbestosis is lethargy or a lack of vitality. What we suspect to be lead in the posterior might well be asbestos in the lungs. During 1956, 11 deaths from asbestosis were reported on the Pacific Coast alone. One insulator died of asbestosis at the age of 29.

Asbestosis is extremely difficult to detect – particularly at the early stages. I know that two of my insulators are afflicted with this condition. How many more will become afflicted is something which I hesitate to predict. Again, the solution is obvious. Remove the cause by substituting other products such as Armaflex or StaFoam for asbestos whenever possible. However, this will take some doing.

In the meantime, the answer is wearing of respirators by all who handle asbestos products. To many the very idea of wearing respirator is repugnant. However, a respirator on the face is preferable to asbestos in the lungs.

Therefore, gentlemen, ours definitely is the important and difficult task of providing and installing effective insulating materials aboard Naval Vessels. Moreover, this task must be accomplished without sacrificing our workmen in the process.”

Tort law and history itself have been distorted by the law’s focus on manufacturing defendants as deep pockets simply because the purchasing enterprises have had immunity from civil liability.

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[1]  Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020).

[2]  “Asbestos and Asbestos Litigation Are Forever” (Sept. 16, 2014).

[3]  Restatement (First) of Torts § 388, comment 1 (1934); Restatement (Second) of Torts § 388, comment n (1965).

[4]  Restatement (Third) of Torts: Products Liability § 2 Categories of Product Defect (1998), Comment i. Inadequate instructions or warnings.

[5] See, e.g., John C. P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010); Anita Bernstein, Questions & Answers: Torts (3d ed. 2014); Saul Levmore & Catherine M. Sharkey, Foundations of Tort Law (2d ed. 2011); Mark A. Geistfeld, Principles of Products Liability (2006). But see John L. Diamond, Lawrence C. Levine, and Anita Bernstein, Understanding Torts 392 (6th ed. 2018) (citing Taylor v. American Chem. Council, 576 F.3d 16, 25 (1st Cir. 2009) (applying Massachusetts law, and affirming summary judgment for defendant PVC trade association on failure-to-warn claim, on ground that the plaintiff’s employer was a sophisticated use and well aware of the danger).

[6]  See, e.g., Gregory C. Keating, “Products Liability As Enterprise Liability,” 10 J. Tort Law 41, 60 (2017).

[7] Thomas H. Koenig & Michael L. Rustad, In Defense of Tort Law 2 (2001); Stephen R. Perry, “The Moral Foundations of Tort Law,” 77 Iowa L. Rev. 449 (1992).

[8] George M. Lawton & Paul J. Snyder, “Occupational Health Programs in United States Naval Shipyards,” 11 Envt’l Res. 162 (1976); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards); Jacqueline Karnell Corn & Jennifer Stan, “Historical Perspective on Asbestos: Policies and Protective Measures in World War II Shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992);  Kenneth W. Fisher, “Asbestos: Examining the Shipyard’s Responsibility: An examination of relevant U.S. archives from the 1930s through the 1980s” (2001); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Danielle M. Dell, Bruce K. Bohnker, John G. Muller, Alan F. Philippi, Francesca K. Litow, W. Garry Rudolph, Jose E. Hernandez, David A. Hiland, “Navy Asbestos Medical Surveillance Program 1990–1999: Demographic Features and Trends in Abnormal Radiographic Findings,” 8 Military Med. 717 (2006); John L. Henshaw, Shannon H. Gaffney, Amy K. Madl & Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibilities & Rights J. 173 (2007); Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011).

[9]  Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985).

[10]  Id. at 251 (quoting Lawton’s interview published in Connecticut Magazine, in 1979).

[11]  Barry I. Castleman, Asbestos: Medical and Legal Aspects (1984).

[12]  See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, … [and] the Navy’s Bureau of Medicine and Surgery is the knowledge of the military.”).

Posted in Historian Testimony, Learned and sophisticated intermediary, Sophisticated User, State of the Art | No Comments »

Cancel Causation

March 9th, 2021

The Subversion of Causation into Normative Feelings

The late Professor Margaret Berger argued for the abandonment of general causation, or cause-in-fact, as an element of tort claims under the law.[1] Her antipathy to the requirement of showing causation ultimately involved her deprecating efforts to inject due scientific care in gatekeeping of causation opinions. After a long, distinguished career as a law professor, Berger died in November 2010.  Her animus against causation and Rule 702, however, was so strong that her chapter in the third edition of the Reference Manual on Scientific Evidence, which came out almost one year after her death, she embraced the First Circuit’s notorious anti-Daubert decision in Milward, which also post-dated her passing.[2]

Despite this posthumous writing and publication by Professor Berger, there have been no further instances of Zombie scholarship or ghost authorship.  Nonetheless, the assault on causation has been picked up by Professor Alexandra D. Lahav, of the University of Connecticut School of Law, in a recent essay posted online.[3] Lahav’s essay is an extension of her work, “The Knowledge Remedy,” published last year.[4]

This second essay, entitled “Chancy Causation in Tort Law,” is the plaintiffs’ brief against counterfactual causation, which Lahav acknowledges is the dominant test for factual causation.[5] Lahav begins with a reasonable, reasonably understandable distinction between deterministic (necessary and sufficient) and probabilistic (or chancy in her parlance) causation.

The putative victim of a toxic exposure (such as glyphosate and Non-Hodgkin’s lymphoma) cannot show that his exposure was a necessary and sufficient determinant of his developing NHL. Not everyone similarly exposed develops NHL; and not everyone with NHL has been exposed to glyphosate. In Lahav’s terminology, specific causation in such a case is “chancy.” Lahav asserts, but never proves, that the putative victim “could never prove that he would not have developed cancer if he had not been exposed to that herbicide.”[6]

Lahav’s example presents an example of a causal claim, which involves both general and specific causation, which is easily distinguishable from someone who claims his death was caused by being run over by a high-speed train. Despite this difference, Lahav never marshals any evidence to show why the putative glyphosate victim cannot show a probability that his case is causally related by adverting to the magnitude of the relative risk created by the prior exposure.

Repeatedly, Lahav asserts that when causation is chancy – probabilistic – it can never be shown by counterfactual causal reasoning, which she claims “assumes deterministic causation.” And she further asserts that because probabilistic causation cannot fit the counterfactual model, it can never “meet the law’s demand for a binary determination of cause.”[7]

Contrary to these ipse dixits, probabilistic causation can, at both the general and specific, or individual, levels be described in terms of counterfactuals. The modification requires us, of course, to address the baseline situation as a rate or frequency of events, and the post-exposure world as one with a modified rate or frequency. The exposure is the cause of the change in event rates. Modern physics addresses whether we must be content with probability statements, rather than precise deterministic “billiard ball” physics, which is so useful in a game of snooker, but less so in describing quarks. In the first half of the 20th century, the biological sciences learned with some difficulty that it must embrace probabilistic models, in genetic science, as well as in epidemiology. Many biological causation models are completely stated in terms of probabilities that are modified by specified conditions.

When Lahav gets to providing an example of where chancy causation fails in reasoning about individual causation, she gives a meaningless hypothetical of a woman, Mary, who is a smoker who develops lung cancer. To remove any semblance to real world cases, Lahav postulates that Mary had a 20% increased risk of lung cancer from smoking (a relative risk of 1.2). Thus, Lahav suggests that:

“[i]f Mary is a smoker and develops lung cancer, even after she has developed lung cancer it would still be the case that the cause of her cancer could only be described as a likelihood of 20 percent greater than what it would have been otherwise. Her doctor would not be able to say to her ‘Mary, if you had not smoked, you would not have developed this cancer’ because she might have developed it in any event.”

A more pertinent, less counterfactual hypothetical, is that Mary had a 2,000% increase in risk from her tobacco smoking. This corresponds to the relative risks in the range of 20, seen in many, if not most, epidemiologic studies of smoking and lung cancer. And there is an individual probability of causation that would be well over 0.9, for such a risk.

To be sure, there are critics of using the probability of causation because it assumes that the risk is distributed stochastically, which may not be correct. Of course, claimants are free to try to show that more of the risk fell on them for some reason, but of course, this requires evidence!

Lahav attempts to answer this point, but her argument runs off its rails.  She notes that:

“[i]f there is an 80% chance that a given smoker’s cancer is caused by smoking, and Mary smoked, some might like to say that she has met her burden of proof.

This approach confuses the strength of the evidence with its content. Assume that it is more likely than not, based on recognized scientific methodology, that for 80% of smokers who contract lung cancer their cancer is attributable to smoking. That fact does not answer the question of whether we ought to infer that Mary’s cancer was caused by smoking. I use the word ought advisedly here. Suppose Mary and the cigarette company stipulate that 80% of people like Mary will contract lung cancer, the burden of proof has been met. The strength of the evidence is established. The next question regards the legal permissibility of an inference that bridges the gap between the run of cases and Mary. The burden of proof cannot dictate the answer. It is a normative question of whether to impose liability on the cigarette company for Mary’s harm.”[8]

Lahav is correct that an 80% probability of causation might be based upon very flimsy evidence, and so that probability alone cannot establish that the plaintiff has a “submissible” case. If the 80% probability of causation is stipulated, and not subject to challenge, then Lahav’s claim is remarkable and contrary to most of the scholarship that has followed the infamous Blue Bus hypothetical. Indeed, she is making the very argument that tobacco companies made in opposition to the use of epidemiologic evidence in tobacco cases, in the 1950s and 1960s.

Lahav advances a perverse skepticism that any inferences about individuals can be drawn from information about rates or frequencies in groups of similar individuals.  Yes, there may always be some debate about what is “similar,” but successive studies may well draw the net tighter around what is the appropriate class. Lahav’s skepticism and her outright denialism, is common among some in the legal academy, but it ignores that group to individual inferences are drawn in epidemiology in multiple contexts. Regressions for disease prediction are based upon individual data within groups, and the regression equations are then applied to future individuals to help predict those individuals’ probability of future disease (such as heart attack or breast cancer), or their probability of cancer-free survival after a specific therapy. Group to individual inferences are, of course, also the basis for prescribing decisions in clinical medicine.  These are not normative inferences; they are based upon evidence-based causal thinking.

Lahav suggests that the metaphor of a “link” between exposure and outcome implies “something is determined and knowable, which is not possible in chancy causation cases.”[9] Not only is the link metaphor used all the time by sloppy journalists and some scientists, but when they use it, they mostly use it in the context of what Lahav would characterize as “chancy causation.” Even when speaking more carefully, and eschewing the link metaphor, scientists speak of probabilistic causation as something that is real, based upon evidence and valid inferences, not normative judgments or emotive reactions.

The probabilistic nature of the probability of causation does not affect its epistemic status.

The law does not assume that binary deterministic causality, as Lahav describes, is required to apply “but for” or counterfactual analysis. Juries are instructed to determine whether the party with the burden of proof has prevailed on each element of the claim, by a preponderance of the evidence. This civil jury instruction is almost always explained in terms of a posterior probability greater than 0.5, whether the claimed tort is a car crash or a case of Non-Hodgkin’s lymphoma.

Elsewhere, Lahav struggles with the concept of probability. Her essay suggests that

“[p]robability follows certain rules, or tendencies, but these regular laws do not abolish chance. There is a chance that the exposure caused his cancer, and a chance that it did not.”[10]

The use of chance here, in contradistinction to probability, is so idiosyncratic, and unexplained, that it is impossible to know what is meant.

Manufactured Doubt

Lahav’s essay twice touches upon a strawperson argument that stretches to claim that “manufacturing doubt” does not undermine her arguments about the nature of chancy causation. To Lahav, the likes of David Michaels have “demonstrated” that manufactured uncertainty is a genuine problem, but not one that affects her main claims. Nevertheless, Lahav remarkably sees no problem with manufactured certainty in the advocacy science of many authors.[11]

Lahav swallows the Michaels’ line, lure and all, and goes so far as to describe Rule 702 challenges to causal claims as having the “negative effect” of producing “incentives to sow doubt about epidemiologic studies using methodological battles, a strategy pioneered by the tobacco companies … .”[12] There is no corresponding concern about the negative effect of producing incentives to overstate the findings, or the validity of inferences, in order to get to a verdict for claimants.

Post-Modern Causation

What we have then is the ultimate post-modern program, which asserts that cause is “irreducibly chancy,” and thus indeterminate, and rightfully in the realm of “normative decisions.”[13] Lahav maintains there is an extreme plasticity to the very concept of causation:

“Causation in tort law can be whatever judges want it to be… .”[14]

I for one sincerely doubt it. And if judges make up some Lahav-inspired concept or normative causation, the scientific community would rightfully scoff.

Taking Lahav’s earlier paper, “The Knowledge Remedy,” along with this paper, the reader will see that Lahav is arguing for a rather extreme, radical precautionary principle approach to causation. There is a germ of truth that gatekeeping is affected by the moral quality of the defendant or its product. In the early days of the silicone gel breast implant litigation, some judges were influenced by suggestions that breast implants were frivolous products, made and sold to cater to male fantasies. Later, upon more mature reflection, judges recognized that roughly one third of breast implant surgeries were post-mastectomy, and that silicone was an essential biomaterial.  The recognition brought a sea change in critical thinking about the evidence proffered by claimants, and ultimately brought a recognition that the claimants were relying upon bogus and fraudulent evidence.[15]

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[1]  Margaret A. Berger, “Eliminating General Causation: Notes towards a New Theory of Justice and Toxic Torts,” 97 Colum. L. Rev. 2117 (1997).

[2] Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert. denied sub nom., U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012)

[3]  Alexandra D. Lahav, “Chancy Causation in Tort,” (May 15, 2020) [cited as Chancy], available at https://ssrn.com/abstract=3633923 or http://dx.doi.org/10.2139/ssrn.3633923.

[4]  Alexandra D. Lahav, “The Knowledge Remedy,” 98 Texas L. Rev. 1361 (2020). See “The Knowledge Remedy Proposal” (Nov. 14, 2020).

[5]  Chancy at 2 (citing American Law Institute, Restatement (Third) of Torts: Physical & Emotional Harm § 26 & com. a (2010) (describing legal history of causal tests)).

[6]  Id. at 2-3.

[7]  Id.

[8]  Id. at 10.

[9]  Id. at 12.

[10]  Id. at 2.

[11]  Id. at 8 (citing David Michaels, The Triumph of Doubt: Dark Money and the Science of Deception (2020), among others).

[12]  Id. at 18.

[13]  Id. at 6.

[14]  Id. at 3.

[15]  Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in silicone litigation as “charlatans” and the litigation as largely based upon fraud).

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